Legal mandates

Question 1

FNB is your client. The bank manager asks you to charge a reduced bond registrattion fee in comparison to what your normal charge will be because of the volume of work that you will receive. Are you allowed to do that?

Answer 1

Yes. You can negotiate your fees with clients as long as it doesn’t amount to touting or overreaching. It is appropriate to do so considering the volume of work given.

Question 2

You propose a reduced fee to get more work from a particular client; a fee that is more competitive than another firm’s. Are you allowed to do that?

Answer 2

No. It would clearly amount to touting and is improper and unethical.

Question 3

An employee of FNB (your client), asks you to represent her in her personal divorce matter but you do not practice in that area of law so you aren’t acquainted with the law nor the practice thereof. Can you represent her and accept the mandate?

Answer 3

Generally, you are entitled to accept or refuse any work offered to you. But before acting on behalf of the FNB employee, you must consider:
1) the Legal Practice Act’s Code of Conduct;
2) Conflict of interest (if it would entail you having to use info which you obtained in the performance of your duties as FNB’s attorneyor if it generally would be contrary to the interests of FNB then I CANNOT act for her);
3) Am I competent to handle the matter? (could be unethical to accept the mandate if you aren’t acquainted with this field of law but if the matter is simple then you can take the matter on with the assistance of an experienced counsel provided you do not bill for additional research you need to do to confirm the legal position)

Question 4

What does touting mean and why is it unprofessional?

Answer 4

In terms of code of conduct (18.22):
1. When an attorney personally or via an agency, procures/ seeks to procure, professional work in an improper/ unprofessional manner or by unfair/ unethical means;

Examples: 1) paying money/ offering a financial reward/ other inducement to someone in return for the referral of professional work;
2) directly/ indirectly participating in an arrangement/ scheme to secure professional work

Unprofessional because it detracts from the dignity of the profession, could lead to dishonesty and provides an unfair advantage to the unscrupulous

Question 5

The FNB employee that approached you for legal representation is financially strained and said that she is not in a position to pay your fees. Can you act pro amico for her?

Answer 5

Pro amico: representing someone with whom you are in a particular relationship with (friend, relative or colleague) for free. No fees are charges but you may recover disbursements. If you do not have such a relationship with that FNB employee, you cannot act pro amico (otherwise would be indirect touting)

Question 6

Can an attorney (as the conveyancer in a property transaction) pay the estate agent’s commission prior to the transfer of the property?

Answer 6

No - amounts to touting.
Unless it is a genuine transaction but the payment must be made at the attorney’s own risk and out of his own funds.

Question 7

What does overreaching mean?

Answer 7

Sec 18.7 of the Code of Conduct
Overreaching is abusing the ignorance of another by recovering excessive amounts from clients/ debtors. It is improper to do so.

Question 8

When is there a conflict of interest?

Answer 8

Anything which adversely affects your judgement or loyalty in representing or advising your client.

Question 9

What is the rule of conflict of interest?

Answer 9

As soon as a conflict arises, the attorney must withdraw/ terminate his mandate. Must ensure the two parties are represented separately.

Once the attorney receives a mandate by a client, he is under an absolute duty NOT to disclose any info of a confidential nature which has come to his knowledge by virtue of the mandate AND must exercise the utmost good faith towards his client even after the termination of the mandate

Question 10

What is the exception to the conflict of interest rule?

Answer 10

Can act for both parties in non-litigious matters (ex: conveyancing). The Attorney can act for both parties in a transaction until there are special circumstances which give rise to a conflict between the parties.

Question 11

What is professional legal privilege?

Answer 11

In addition to the contractual obligation of confidence.
It’s a doctrine that confidential communications between you and your client are privileged from disclosure.
It is a rule of substantive law.

Question 12

To what types of communication does professional privilege apply?

Answer 12

1) where the communication relates to professional or intended professional relationship with the client
2) communications made for the purpose of seeking or giving legal advice (written/oral) or for use in existing and anticipated legal proceeedings
3) where the client confesses to me the commission of a prior crime or fraud

Question 13

If one document is privileged and that document is contained in a file, does that make the entire file privileged?

Answer 13

No, only that specific document will be privileged

Question 14

Can you decide to waive privilege?

Answer 14

No, only the client can decide

Question 15

Can you use privileged info of the opposing party that has accidently or unlawfully come into your possession?

Answer 15

No! As soon as you get that info, you must notify the legal representative of the opposing party

(unless the info subsequently becomes available through lawful means - then you can use that document)

Question 16

What does it mean to be “fit and proper”?

Answer 16

A person who displays the characteristics of honesty, integrity and reliability.

It is the basis of entry into the profession.

Question 17

What are ethics?

Answer 17

It is the code of conduct governing the legal profession. It sets standards re moral and professional duties (towards their colleagues, clients and court).

Narrow definition: system of professional regulations governing the conduct of lawyers

Question 18

Professional privilege does not apply to….

Answer 18

1) docs or info which were not given for the purpose of legal advice or legal rep
2) docs or info provided to commit a crime or fraud
3) name of client
4) facts learned by own senses
5) statute expressly or implicitly excludes professional privilege
6) where confidentiality of oral evidence is destroyed by such evidence, the confidentiality of contemporaneous records is also destroyed

Question 19

What are the exceptions to the rule “once privileged, always privileged”?

Answer 19

1) post death of testator (if you attested a the will as a witness, you can give evidence re its execution and content)
2) admission of client’s insolvency to the curator is admissible in sequestration proceedings
3) where the client waives privilege

Question 20

Discuss what “without prejudice” means

Answer 20

Rule: express or implied statements made without prejudice in the course of bona fide negotiations for the settlement of a dispute cannot be disclosed in evidence (otherwise it would prejudice the rights of the person making the offer if the latter is refused)

Protects people: they can try to settle their dispute without fearing that the mere offer of settlement be used against them if negotiations break down

Question 21

When must an Attorney refuse a mandate?

Answer 21

1. Lacks expertise
2. Not enough time to do the work
3. Conflict of interest
4. Cannot agree re fees
5. Instruction of client is unlawful, immoral or contrary to public policy

Question 22

When can an Attorney terminate the mandate with his client (ie. has good cause to do so)?

Answer 22

1. Client not paying disbursements
2. Client asked you to do something illegal or dishonourable
3. Did not provide you with instructions
4. Improper conduct of client
5. Client committed a fraud deliberately
6. My personality clashes with that of the client
7. Client does not accept my advice
8. I am ill